panded that holding to prohibit most
gun-control laws in the states as well. The
final opinion of the year, by Roberts,
struck down as unconstitutional a portion
of the Sarbanes-Oxley law, which had
been passed in 2002 to tighten account-
ing regulations in the wake of the collapse
of Enron.
Breyer is tall and twitchy, and un-
skilled in the art of the poker face. As
Alito and then Roberts announced their
decisions, Breyer rubbed his mostly bald
head and widened his eyes at passages that
drew his ire. Occasionally, he'd look off
to his left, toward the seating area for law
clerks, and roll his eyes. Stevens had long
been the leader of the Court's liberal
bloc, and he usually wrote the principal
dissenting opinions for himself, Gins-
burg, Breyer, and David Souter (who was
replaced this year by Sonia Sotomayor,
his ideological kinswoman). But also on
June 28th, a few steps away on Capitol
Hill, the confirmation hearings for Elena
Kagan, Stevens's successor, had begun.
Ginsburg is a loner; Sotomayor and Kagan
are new. On this day, Breyer led the left,
as he likely will for years to come.
It is the custom at the Court for
Justices to read condensed versions of
their majority opinions and, if they feel
strongly about the case, their dissents.
Breyer was a law professor at Harvard
when President Jimmy Carter appointed
him to the First Circuit, in 1980 (Presi-
dent Clinton nominated him to the Su-
preme Court in 1994), and he uses this
forum to explain the stakes and, espe-
cially lately, to raise the alarm. "Since
Heller was decided, numerous historians
and scholars have expressed the view that
the Court got its history wrong," he said.
'Why should the Court now broadly ex-
tend Heller's applicability?"
But Breyer's heart was really in the
Sarbanes-Oxley case, notwithstanding
what appeared to be its arcane subject
matter. The cases that usually generate
the most interest at the Court involve civil
liberties-abortion, free speech, Guantá-
namo-but, as a scholar and a judge,
Breyer has been most interested in the less
glamorous field of administrative law,
which is now, suddenly, at the center of
the Court's agenda. Sarbanes-Oxley di-
rected the Securities and Exchange Com-
mission to appoint five members to a new
body called the Public Company Ac-
counting Oversight Board (PCAOB, pro-
nounced "peekaboo"), which was estab-
lished to supervise accounting firms. A
conservative group, the Free Enterprise
Fund, filed a suit arguing that the struc-
ture of the PCAOB was unconstitutional,
because its members could be removed
only by the S.E.C., and not by the Presi-
dent. In an opinion by the Chief Justice,
for the customary five-to-four majority,
the Court agreed.
To Breyer, the stakes in the case were
immense, because the framework of the
PCAOB was similar to that of many other
components of the contemporary ad-
ministrative state-"the Federal Trade
Commission, the Federal Communica-
tions Commission, the Social Security
Administration, including also more
than fifteen hundred administrative law
judges, and including as well most of the
military officer corps." The decision put
the actions of all these administrators at
legal risk. "Unless today's principle of
constitutional law is cabined, it can be-
come virulent, running like a computer
virus through the halls of government,"
Breyer warned.
The PCAOB case had an unmistakable
subtext: the legal fate of health-care re-
form and, indeed, of much of the Obama
Administration's work. In the majority
opinion, Roberts wrote, with customary
élan, "One can have a government that
functions without being ruled by func-
tionaries, and a government that benefits
from expertise without being ruled by
experts"-a sentiment that could have
served as a Republican talking point in the
health-care debate. The Chief Justice
went on, "The growth of the Executive
Branch, which now wields vast power and
touches almost every aspect of daily life,
heightens the concern that it may slip
from the Executive's control, and thus
from that of the people. This concern is
largely absent from the dissent's paean to
the administrative state."
Unlike Roberts, who is a gifted stylist,
Breyer is a plodder in print, who writes in
a kind of judicial PowerPoint. (He likes to
begin sentences with an italicized "First,"
then "Second," and so on.) Critics on the
left and the right regard Breyer as more of
a technocrat than an ideologue. "His
dream job would be as a European Union
commissioner, reviewing cheese quotas
from around the region," M. Edward
Whelan III, the president of the right-
leaning Ethics and Public Policy Center,
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